M v Police HC Auckland CRI 2006-404-45

[2006] NZHC 882

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-000045

BETWEEN  M

Appellant

AND  POLICE Respondent

Hearing:         28 July 2006

Appearances: A Speed for Appellant

K E Hogan for Respondent

Judgment:      28 July 2006

JUDGMENT OF COOPER J

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.

Copy to:

Andrew Speed, PO Box 941, Shortland Street, Auckland

M V POLICE HC AK CRI 2006-404-000045  28 July 2006

[1]      The appellant, M  , appeals against the sentence that was imposed on him in the Auckland District Court on 26 January 2006.  He was charged under s 223(d) of the Crimes Act with stealing a bottle of red wine, valued at $22.95, the property of New World.

[2]      According to the summary of facts, the event occurred at 6.25 p.m. on Friday

22 July 2005 at the New  World Supermarket situated at College Hill in Freeman’s Bay.  Mr M   was observed by closed circuit television within the store.   He had a shopping trolley and he selected various items of groceries.   However, confronted by a display of alcohol, he selected a bottle of Esk Valley red wine and rather than placing it within his shopping trolley he opened up his jacket and slipped the bottle into a hole in the lining.

[3]      He paid for the items in the trolley at the check-out, but he did not produce the bottle of wine from inside the lining of his coat, nor did he make any effort to pay for it before leaving the store.

[4]      Outside, he was detained by security staff, led back inside and, the police having been called, he admitted the circumstances and conceded that his actions were wrong.  He initially pleaded not guilty to the charge, but on the date set for the defended hearing, 26 January 2006, he pleaded guilty.  He was convicted and fined the sum of $250 and ordered to pay Court costs of $130.

[5]      In advancing the appeal Mr Speed pointed out that Mr M   was an indigent alcoholic.  He submitted that it was likely that he would not be able to pay a fine of that size.   Both Mr Speed and the Court on appeal, are hampered by two handicaps.   The first is that although Mr M   is a client of longstanding, Mr Speed has frankly and properly told the Court that he has not had any contact with Mr M   essentially since the appeal was filed.  Secondly, in this case, there are no sentencing notes from the District Court.  That is because, and again I suppose one should acknowledge the spirit of frankness in which this advice was given, the Registrar of the District Court says:

I  wish to  advise that  the  sentencing  notes  in  the  above  matter  are  not available as the Registrar of Judge J P Gitto’s[sic] Court on the 26th January

2006 did not operate the tape recorder correctly.

[6]      It is unfortunately becoming increasingly frequent that this Court is called upon to deal with matters on appeal on the basis of inadequate records from the District Court.  From time to time in dealing with such matters Judges of this Court register complaints.   But the result of doing so is not apparent in any improved performance by the Registry of that Court.  Be that as it may, Mr Speed concedes that as the appellant, Mr M  , needs to  show that the sentence was clearly excessive.  Without the benefit of notes from the District Court the only option is for this Court to deal with the matter afresh.

[7]      I mention at this point that Mr Speed has not thought it appropriate to argue that the appellant should be discharged without conviction.   He has, however, submitted that I should not refer to the list of previous convictions which is on the file because there is no proof that that list has been admitted by the appellant.

[8]      Looking at the matter in the absence of sentencing notes and in the absence of intelligence about Mr M  ’s previous convictions, I am still not satisfied, as I must be, that the sentence imposed was clearly excessive.  The only tangible matter to which Mr Speed has been able to refer is the possibility that Mr M   is unable to pay the fine.  However, Mr Speed does not know that and his client has not put him in possession of facts which might normally be taken into account on an informal  basis  at  least,  which  would  enable  the  Court  to  be  satisfied  that Mr M   is without funds.

[9]      I  cannot,  therefore,  be  satisfied  that  the  sentence  imposed  was  clearly excessive and the appeal is dismissed.